In a decision released earlier this week, the Connecticut Appellate Court reversed the murder conviction of George Michael Leniart. The Appellate Court reversed because it disagreed with the trial court’s decision to exclude a videotape of a police interview with the State’s key witness. Open File readers, however, will recognize the significance of a secondary issue the court resolved. Finding that an evidentiary question raised in the appeal was “likely to arise again on remand,” the court went on to clarify that it agrees with the defendant “that the [trial] court improperly excluded expert testimony proffered by the defendant regarding the reliability of jailhouse informant testimony.” This ruling provides defendants confronting jailhouse informant testimony—also known as snitch testimony—with the opportunity to call an expert to let jurors know about the many factors that may undercut the reliability of this type of evidence.
The murder case against Mr. Leniart turned in large part on the testimony of inmates who claimed that he confessed the crime to them. “The defendant admitted to four individuals . . . to killing A.P. and/or to disposing of her body: [including] three inmates—Michael Douton, Zee Ching, and Kenneth Buckingham.” In order to help jurors understand the factors affecting the credibility of jailhouse informants, the defense planned to call as an expert Professor Alexandra Natapoff, the leading scholar in the field. But, the State filed a motion to exclude the testimony. Professor Natapoff took the stand without jurors present and was questioned by the parties. The trial court took a short recess after hearing her proffered testimony and then decided that she could not testify.
The Appellate Court’s opinion explains the parties’ competing positions. According to the defense team:
[B]ecause the case against him [Leniart] depended heavily upon the testimony of jailhouse informants, some if not all of whom benefited from cooperating with the state, the court should have permitted him to present expert testimony to the jury concerning the general unreliability of such evidence. The defendant contends that the information that he sought to present is not within the knowledge of the average juror . . . .
Unsurprisingly, the State countered that “the substance of the  testimony concerned matters within the general knowledge of jurors” and Professor Natapoff’s “opinions would invade the exclusive province of the jury to assess the credibility of witnesses.”
As a starting point, the Appellate Court noted that the jurisprudence around snitch testimony has evolved. A few years ago, the Connecticut Supreme Court “mandated that, going forward, trial courts in this state must give a special credibility instruction to the jury any time informant testimony was used, regardless of whether the informant had been promised any benefit for his or her testimony.” That opinion in State v. Arroyo noted “[i]n recent years, there have been a number of high profile cases involving wrongful convictions based on the false testimony of jailhouse informants.” The high court thus based its requirement for a special credibility instruction on the “growing recognition of the inherent unreliability of jailhouse informant testimony.”
Building on that recognition, the Appellate Court in Leniart “conclude[d] that the court abused its discretion by granting the state’s motion in limine and excluding Natapoff as a witness, especially in light of the fact that, in the present case, informants played a crucial role in the state’s case against the defendant.” It rejected the trial court’s rationale for excluding Natapoff. Although the trial court felt that expert testimony would “invade the province of the jury,” the Appellate Court found that the trial court’s position lacked support. Critically, Natapoff was not enlisted to testify about the specific informants in this case; instead, her testimony was tailored to explain general concerns about the credibility of jailhouse informants. In these circumstances, the Appellate Court appropriately determined that Natapoff’s testimony “could have aided the jury in making its own informed and independent assessment regarding the credibility of the informants in the present case.”
Moreover, the Appellate Court rejected the trial court’s unsupported finding that average jurors have common knowledge about the various factors affecting the credibility of jailhouse informants. It pointed out that the State produced no evidence to challenge Natapoff’s testimony that jurors are in fact not well-informed. Her unrebutted testimony emphasized that jurors tend to believe that informants are likely to testify truthfully because they could face perjury charges if they lie on the stand. But, the reality is that informants almost never get charged with perjury. The threat of perjury has almost no bearing on informants’ incentives and their ultimate performances from the witness stand.
The Appellate Court’s decision to permit expert testimony on the credibility of snitches is an important step in the direction of curtailing wrongful convictions and ensuring that prosecutors produce reliable evidence to support their charges. The Open File has covered many cases (like this one out of Illinois) in which jailhouse informants lie, often in the hopes of obtaining greater leniency. This phenomenon—one of many that call into question the reliability and legitimacy of snitch testimony—turns on prosecutorial participation in the delicate dance of bringing forth informants who will help obtain a conviction: “say nothing concrete to a snitch about sentence relief, thus giving him the wiggle room to say on the stand that he has received no promises, all the while making it clear that unspecified relief will be offered.”
Other breeds of disturbing informant deployment exist, too. Just ask the District Attorney in Orange County, who has been embroiled in a deep and ever-growing scandal involving a highly-orchestrated jailhouse informant network about which criminal defendants knew nothing for many, many years.
Prosecutorial reliance on jailhouse informants appears baked into the current criminal justice system. While there have been some legislative proposals to limit or eliminate snitch testimony in certain circumstances, wholesale reform is unlikely to happen quickly. In the meantime, incremental steps are vital to limit the damage informant testimony may wreak. Whether they involve pretrial hearings on the reliability of a specific informant’s testimony, corroboration requirements, or the opportunity to present expert testimony about informant credibility, they provide a critical check on a type of evidence that has proven itself to be uniquely damaging and extraordinarily unreliable.
While the decision in Leniart may eventually be reviewed by the Connecticut Supreme Court, it’s a good moment to echo a question that Vice asked not too long ago. Given the unreliability of jailhouse informants, “[w]hy do prosecutors still use them?”